How State Laws May Determine the Outcome of Your Non-Compete Dispute

You want to know whether your non-compete will prevent you from taking your next job.  The first question that needs to be answered is which state law applies to your non-compete agreement.  There as some states that do not enforce non-compete agreements in most case and other states that routinely enforce non-compete agreements.  Additionally, the state in which you are employed may not be the applicable state law to apply to determine the validity of your non-compete agreement.   Many non-compete agreements will contain an enforceable choice of law or jurisdiction agreement that may determine which state law applies to the non-compete agreement.

Because each state is free to develop its own law with regard to the enforceability of non-compete agreements the answer to which state law applies is critical to your understanding of your legal rights and obligations relative to your non-compete agreement.  In California, for instance, a non-compete agreement is generally not enforceable except in the limited circumstance of the sale of a business.  In Michigan, a non-compete is enforceable if it supports a legitimate business interest of the employer and is deemed reasonable in geographic scope and time duration.   Another important issue in deciding which state law may apply in states that enforce non-compete agreemetns is the concept of “blue penciling” or in other words whether the local court may reform the agreement to make it reasonable or, if found unreasonable, the Court may not blue pencil or reform the agreement and must simply invalidate it.

The first thing you or your attorney must determine is which state law applies to your non-compete agreement which is not always an easy thing to determine.   Traverse Legal is versed in the application of the law in all 50 states in determining the validity of a non-compete agreement and experienced in assisting you in determining which state’s law is applicable to your non-compete agreement.

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FAA Part 107 Lawyers Advising Clients on Controlled Airspace

The FAA Part 107 Airspace Debacle

When the FAA implemented the Part 107 UAS regulations on August 29, 2016, drone pilots and operators were pretty excited. As a drone lawyer advising hundreds of UAV clients, I already knew there was a weasel in the wood stack. The FAA had already indicated that it would only gradually open up controlled airspace (Class B, C, D and E).  This would mean that part 107 pilots could only fly in uncontrolled airspace, commonly known as Class G airspace. Here is what the FAA said on June 21, 2016:

Operations in Class G airspace are allowed without air traffic control permission. Operations in Class B, C, D and E airspace need ATC approval. See Chapter 14 in the Pilot’s Handbook (PDF).

And still through today’s date, The FAA’s “Fly for Work/Business” web page suggests that the only Airspace the FAA intended to open up quickly was Glass G.

Operating Rules:

• Class G airspace*

• Must keep the aircraft in sight (visual line-of-sight)*

• Must fly under 400 feet*

• Must fly during the day*

• Must fly at or below 100 mph*

• Must yield right of way to manned aircraft*

• Must NOT fly over people*

 

Must NOT fly from a moving vehicle*

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Free FAA Part 107 Airspace Request Training Videos.

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It’s now November, 2016.  What is the State of FAA Airspace Authorization Now?

Most everyone in the drone industry expected that the FAA would move quickly to open up controlled airspace to Part 107 pilots. But that has not been the case at all. In fact, the FAA’s target deadlines for airspace authorizations we’re not met. Here’s with the FAA told us about its target dates for opening up airspace.

The FAA will evaluate airspace authorization requests using a phased approach.

Operators may submit their requests starting today, but air traffic facilities will receive approved authorizations, if granted,  according to the following tentative schedule:

Class D & E Surface Area      October 3, 2016

Class C                                 October 31, 2016

Class B                                  December 5, 2016

The FAA will make every effort to approve requests as soon as possible, but the actual processing time will vary, depending on the complexity of an individual request and the volume of applications the FAA receives. The agency is urging users to submit requests at least 90 days before they intend to fly in controlled airspace.

Well there have been some authorizations by ATC in class C & D, the number of authorizations is minuscule compared to the number of requests. As importantly, the FAA continues to play hide and seek with it criteria for granting airspace authorization.

As a result, the agency has had to reject 71 waiver requests and 854 airspace applications.

What the FAA has not said his how many airspace applications where in fact filed. And it has told us virtually nothing about why the airspace requests were not granted. Without this information, drone companies have virtually no guidance what the FAA is actually looking for. It could be that the FAA is simply denying airspace requests because they have decided they are not going to grant them under any circumstances at certain locations. That’s fine. But why not tell drone operators and drone lawyers representing drone pilotsWhat those locations are. If drone pilots are making common mistakes in their airspace request, why not publicly identify those mistakes so that pilots can get it right the next time.

Is importantly, the FAA provides no timeframe for processing airspace requests. A drone service company cannot sell drone services to customers if they can’t tell that customer when they might be able to fly and the likelihood they might be able to fly.

Until the FAA cleans up its aerospace authorization process and system, drunk companies will remain largely grounded. Companies need certainty in order to build a viable business model. There are simply too many things the FAA is not telling us in order for the drone industry to grow the customer base and market segments.

Part 107 Waiver & Airspace Training Videos

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Internet Trade Libel or Defamation: Similar Yet Different

We all know someone who has been the subject of internet defamation.  We receive inquiries daily about what can be done to correct a false statement made about someone on the internet.  Increasingly, there a significant number of businesses who are falling victim to internet defamation.  Businesses who are the subject of false and defamatory statements online or otherwise may have a distinct and separate claim against the poster for trade libel.

The standard defamation elements generally apply to businesses in that the content at issue must be a statement of fact that is provably false that causes financial harm or harm to reputational interests and the author was at least negligent or careless in its research of the true facts prior to posting the material online.  Generally, a business must also prove that the actual monetary damages and that the poster of the content acted with the intent to disparage your product or brand.  Proof of all of these elements will entitle the victim to be able to assert a separate cause for business defamation or the alternative label is trade libel.

An often overlooked potential claim in a business defamation or trade libel case is one that falls under the Lanham Act which is also known as the Trademark Act and is essentially a false advertising claim and is a claim raised against a competitor of your brand or business offerings.

If your business is victim to business defamation or trade libel, or has been damaged as the result of the false advertising of a competitor, then the attorneys at Traverse Legal may be able to assist you.  Contact us today for an assessment of your trade libel matter.

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Time to Legislate Against Trademark Infringement on Social Media?

LinkedIn was founded in 2002, Facebook was founded in 2004, YouTube was founded in 2005, Twitter was founded in 2006, Instagram and Pinterest were founded in 2010 and Snapchat was founded in 2011.  Social networking websites have changed the landscape of not only how we interact with one another but also how companies reach consumers.  Companies evangelize their brands through social media sites as much as through their websites today.  In fact, some companies may argue that the following on a particular social media platform is more valuable than a stagnant website that does not draw constant attention from consumers.  However, what is one to do when they face a trademark issue related to a social media handle?

The Anti-Cybersquatting Consumer Protection Act (ACPA) was enacted in 1999 in order to create a cause of action against one who registered, used or trafficked in a domain name with a bad faith intent to profit off of the goodwill associated with the trademark of another.  It was an extension of the Lanham Act, namely 15 USC 1125.  It coincided with the explosion of the Internet.  It was aimed at protecting trademark owners from being harmed by cybersquatters who could hold domain names hostage, among other things.  The ACPA has been a powerful tool for trademark owners, namely companies looking to protect their brand online.  While domain names have become ubiquitous, so too, albeit thereafter, has social media.

Unfortunately for trademark owners who attempt to claim a social media handle on the various social networking websites only to find it already taken, they are left to try to work with the social media site (as limited by their policies) or pursue litigation using causes of action that may not be directly on point.  Trademark owners are also forced to deal with those who imitate the brand, or the individual, with similar handles.  A username, domain name and trademark search will likely reveal problems on social media for most brands, especially newer ones who do not have the resources to be as vigilant in their trademark monitoring, defensive registration or enforcement efforts.  More often than not, use of a trademark search tool will reveal infringement of one’s trademark or brand or identity.  Instead of brands being unable to prevail against the owners of what would otherwise be their social media handles because, for example, there has been no use of the social media handle in commerce, it is time to consider a statute akin to the ACPA, and its goal of cyberpiracy prevention, for social media.

A social media statute could be similar in language to that of the ACPA, as proposed by this author and outlined below in most relevant parts.  Doing so would afford a trademark owner the ability to pursue a civil action involving the social media handle and have a court order the forfeiture or cancellation of the social media handle or the transfer of the social media handle to the owner of the mark.  Such a statute may also ultimately spur an arbitration option similar to that the Uniform Domain Name Dispute Resolution Policy (UDRP).  Regardless, is it time for legislation to catch up with technology, and possibly those that may benefit from trademark owners on social media websites?

 

Social Media Piracy Prevention [Proposed by Brian A. Hall]

(A) A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person—

(i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and

(ii) registers, traffics in, or uses a social media handle that:

(I) in the case of a mark that is distinctive at the time of registration of the social media handle, is identical or confusingly similar to that mark;

(II) in the case of a famous mark that is famous at the time of registration of the social media handle, is identical or confusingly similar to or dilutive of that mark; or

(III) is a trademark, word, or name protected by reason of section 706 of title 18 or section 220506 of title 36.

(B) In determining whether a person has a bad faith intent described under subparagraph (A), a court may consider factors such as, but not limited to—

(I) the trademark or other intellectual property rights of the person, if any, in the social media handle;

(II) the extent to which the social media handle consists of the legal name of the person or a name that is otherwise commonly used to identify that person;

(III) the person’s prior use, if any, of the social media handle in connection with the bona fide offering of any goods or services;

(IV) the person’s bona fide noncommercial or fair use of the mark in a site accessible under the social media handle;

(V) the person’s intent to divert consumers from the mark owner’s online location to a site accessible under the social media handle that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;

(VI) the person’s offer to transfer, sell, or otherwise assign the social media handle to the mark owner or any third party for financial gain without having used, or having an intent to use, the social media handle in the bona fide offering of any goods or services, or the person’s prior conduct indicating a pattern of such conduct;

(VII) the person’s provision of material and misleading false contact information when applying for the registration of the social media handle, the person’s intentional failure to maintain accurate contact information, or the person’s prior conduct indicating a pattern of such conduct;

(VIII) the person’s registration or acquisition of multiple social media handles which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such social media handles, or dilutive of famous marks of others that are famous at the time of registration of such social media handles, without regard to the goods or services of the parties; and

(IX) the extent to which the mark incorporated in the person’s social media handle is or is not distinctive and famous.

 

Note this post represents the views of its author, Brian A. Hall, and it does not necessarily represent the views of Traverse Legal, PLC or its members.

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Your Trademark Registration May Not Mean You Have Trademark Rights

In the United States, trademark rights belong to the first user of a distinctive trademark in commerce.  These are known as common law trademark rights.  A trademark registration with the United States Patent and Trademark Office (USPTO) is not required.  That said, there are benefits to registering a trademark with the USPTO.  A federal trademark registration affords many benefits, among them is what is known as nationwide priority.  Put simply, a common law trademark affords the trademark owner with rights only in the geographic locations in which the trademark was used (along with offering/providing the underlying goods or services).  A federal trademark registration, on the other hand, affords the trademark owner with nationwide rights, regardless of use in a particular geographic location.  However, there is a caveat.  If a common law trademark owner’s rights predate a federal trademark registrant’s rights in a geographic location, a concurrent use issue may arise.  As you can imagine, this can create headaches given today’s Internet economy.  Nonetheless, this is an example of a situation where the owner of a federal trademark registration may have prior rights in most, but not all, geographic locations in the United States.  How the parties peacefully coexist, if at all, is commonly the impetus for dispute, including litigation.

Here are some trademark tips should you find yourself subject to a concurrent use proceeding or other dispute involving geographical limitations on usage of a trademark:

1. It is important for trademark owners to perform trademark clearance searches prior to commencing use of a trademark in hopes of identifying such common law trademark owners.
2. Despite the United States being a first to use jurisdiction for the establishment of trademark rights, you should file for federal trademark protection as soon as possible in order to avail yourself of nationwide priority.  Keep in mind that one may file an intent to use trademark application with the USPTO, meaning you can apply to register a mark before actual use so long as you have a bona fide intent to use that mark (with proof of the same).
3. In the event of a dispute, priority of use versus priority of application for registration should be analyzed.
4. Recognize that concurrent use agreements can allow peaceful co-existence between competing trademark owners, though they must be properly tailored to account for necessary terms and conditions.
5. A state trademark registration provides little, if any, benefit beyond that afforded under common law.  If you wish to register your trademark, always consider federal trademark registration with the USPTO.

So, remember, just because you own a federal trademark registration does not necessarily mean you have prior trademark rights or ultimate exclusivity of rights to your trademark.  If you find yourself needing trademark advice with respect to trademark searches, trademark registration or a trademark dispute (especially one involving common law priority issues), you can contact a trademark attorney for assistance.

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What is a Provisional Patent Application?

A provisional patent application is a patent filing with the U.S. Patent and Trademark Office (USPTO) that allows you to obtain an effective filing date in a later filed non-provisional patent application, without triggering the start of the patent term (patent term begins on the filing date of a non-provisional patent application).  This is particularly important now that the U.S. has adopted a first to file, instead of first to invent, patent filing system.  Even though a provisional patent application never issues into a patent, it typically provides a quicker and cheaper way to obtain an effective filing date with the USPTO.  Provisional patent applications also allow the term “Patent Pending” to be applied in connection with the description and marketing of an invention.

 

Within 12 months from the date the provisional patent application is filed, a non-provisional patent application must be filed in order to claim priority from the filed provisional patent application and the benefit of the earlier filing date.  However, the non-provisional patent application can only claim priority to subject matter that was originally disclosed in the provisional patent application, not new subject matter introduced in the non-provisional patent application.  As a result, it is critically important that the provisional application describes the invention as fully and completely as required in a non-provisional patent application filing.  An informal or poorly drafted provisional patent application will provide very little (if any) benefit.

 

By filing a provisional patent application, you can establish priority rights to your invention with the USPTO and allow yourself up to 12 months to continue working/improving on the invention and generating any additional versions.  As you make any advances or improvements to your invention, you may consider filing additional provisional patent applications to cover the new subject matter.  Multiple provisional patent applications can be filed within 12 months of the first provisional patent application and one non-provisional patent application can claim priority back to each of the filed provisional patent applications.  Thus, all the versions and aspects of your invention can be bundled together into one non-provisional patent application.

 

For more information regarding filing provisional patent applications with the USPTO, see http://ift.tt/2e2W3G1.

 

The patent attorneys at Traverse Legal can help you draft and file provisional patent applications that fully describe your invention.  Traverse Legal’s patent attorneys will work with you to develop a patent filing strategy that best serves your business and intellectual property goals.  Give us a call today at 866-936-7447 for a free consultation regarding your patent needs.

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Trade Secret Protection

What is a trade secret?  Do I (or my company) own any trade secrets?  If so, how do I enforce my trade secrets?  In order to answer these questions, it is very important to understand the Defend Trade Secrets Act of 2016 (DTSA) and its various protections and obligations.  The DTSA creates a federal cause of action for trade secret misappropriation that mainly mirrors most state law under the Uniform Trade Secrets Act.  An owner of a trade secret that is being misappropriated may bring an action under the DTSA if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.

 

According to the DTSA, the term “trade secret” refers to all forms and types of information if:

• the owner has taken reasonable measures to keep such information secret; and
• the information derives independent economic value (actual or potential), from not being generally known to, and not being readily ascertainable through proper means by another person who can obtain economic value from the disclosure or use of the information.

 

The DTSA also specifically defines what is meant by the term “misappropriation” of a trade secret and provides examples of what constitutes “improper means” to acquire knowledge of the trade secret.  In order to understand these terms and effectively navigate through the DTSA, it is essential to work with an experienced trade secret law attorney.

 

There are several responses that you and your company should be thinking about in light of the DTSA.  First, you should update all of your employment and non-disclosure agreements to incorporate the appropriate provisions from the DTSA, such as those pertaining to whistleblower immunity.  Second, you should determine what information (if any) could be considered a trade secret.  Third, you should evaluate the protections in place to maintain the confidentiality of those trade secrets.  Lastly, you should develop a course of action for the potential misappropriate of your trade secrets.

 

Let Traverse Legal’s experienced trade secret attorneys guide you through the Defend Trade Secrets Act and assist you with identifying, protecting, and enforcing your trade secrets and other intellectual property.  Give us a call today at 866-936-7447 for a free consultation regarding your trade secret needs.

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